Habeascorpus - 17 12 2018
Habeascorpus - 17 12 2018
Habeascorpus - 17 12 2018
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HABEAS CORPUS CASE AND ITS CULMINATION
INTRODUCTORY:
Article 359(1) of the Constitution (as it then existed), the right of any
person to move any court for the enforcement of the rights conferred by
Articles 14, 21 and 22 of the Constitution was suspended.
In Makhan Singh v. State of Punjab, AIR 1964 SC 381:
(1964) 4 SCR 797 (supra) (and connected cases), the persons were
detained under Rule 30(1)(b) of the Defence of India Rules, 1962.
Detenues approached various High Courts. Both Punjab and Bombay
High Courts took view against the Detenues. However, the Allahabad
High Court took a contrary view.
The matters came up before the Supreme Court. The Supreme
Court considered the scope and effect of the Presidential Order issued
under Article 359(1) of the Constitution during Proclamation of
Emergency.
From the view of the majority of Judges speaking through Justice
Gajendragadkar , the following principles followed. The proceedings
which were barred by the Presidential Order issued under Article 359(1)
of the Constitution were proceedings taken by persons for the
enforcement of such of rights conferred by Part III as might be mentioned
in the Order. If a person moved any Court to obtain a relief on the ground
that his fundamental rights specified in the Order had been contravened,
that proceeding was barred. In determining the question as to whether a
particular proceeding fell within the mischief of the Presidential Order or
not, what had to be examined was not so much the form which the
proceeding had taken, or the words in which the relief was claimed, as the
substance of the matter and consider whether before granting the relief
claimed by the person, it would be necessary for the Court to enquire the
question whether any of his specified fundamental rights had been
contravened. If any relief could not be granted to the person without
determining the question of the alleged infringement of the said specified
fundamental rights, that was a proceeding which fell under Article 359(1)
of the Constitution and, therefore, would be hit by the Presidential Order
issued under the said Article. The sweep of Article 359(1) and the
Presidential Order issued under it was thus wide enough to include all
claims made by persons in any court of competent jurisdiction when it
was shown that the said claims could not be effectively adjudicated upon
without examining the question as to whether the person is in substance
seeking to enforce any of the said specified fundamental rights. This
position would apply to Article 32 as well as Article 226 of the
Constitution. Further, the prohibition contained in Article 359(1) of the
Constitution and the Presidential Order would apply to proceedings under
Section 491(1) (b) of the Code of Criminal Procedure (Old) just as it
applied to Article 32 and Article 226 of the Constitution.
challenge the same on the ground that a malafide order was outside
the scope of the Preventive Detention Law.
(c) If the detention under the Preventive Detention Law could be
REVOCATION OF EMERGENCY
Proclamations of Emergency of 1971 and 1975 were revoked in
early 1977. Before considering the effect of 44th Constitutional
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DOCTRINE OF ABSENCE OF
ARBITRARINESS OR DOCTRINE OF
FAIRNESS AND REASONABLENESS
For two decades since the enforcement of Constitution in 1950,
Article 14 became identified with the Doctrine of Reasonable
Classification. However, in E.P. Royappa v. State of Tamil Nadu, AIR
1974 SC 555: (1974) 4 SCC 3, the Supreme Court expanded the scope of
Article 14 of the Constitution, and laid down the Doctrine of Absence of
Arbitrariness or the Doctrine of Fairness and Reasonableness. It was
held that “Equality is a dynamic concept with many aspects and
dimensions and it cannot be ‘cribbed, cabined and confined’ within
traditional and doctrinaire limits. From a positivistic point of view,
equality is antithetic to arbitrariness. In fact, equality and arbitrariness are
sworn enemies; one belongs to the rule of law in a republic while the
other, to the whim and caprice of an absolute monarch. Where an act is
arbitrary it is implicit in it that it is unequal both according to political
logic and constitutional law and is therefore violative of Article 14.”
Article 14 strikes “at arbitrariness in State action.”
the challenge of the latter fundamental right. In testing the validity of the
State action with reference to fundamental rights, what the Court must
consider is the direct and inevitable consequence of the State action.
Otherwise, the protection of the fundamental rights would be eroded.
DOCTRINE OF INTER-RELATIONSHIP OF
FUNDAMENTAL RIGHTS
In A. K. Gopalan v. State of Madras, AIR 1950 SC 27, the Supreme
Court laid down the Doctrine of Mutual Exclusivity of Fundamental
Rights. According to this Doctrine, the Fundamental Rights conferred
by Part III of the Constitution (such as, Articles 19, 21, 22 and 31) were
distinct and mutually exclusive—each article enacting a code relating
to the protection of distinct rights. Hence, if the State action satisfied
the limits of interference with a particular Fundamental Right, the
State action would not be required to meet the challenge of another
Fundamental Right. To illustrate, as per the Doctrine of Mutual
Exclusivity of Fundamental Rights, Article 22 of the Constitution was a
self-contained Code in regard to preventive detention. Therefore, if a
Preventive Detention law satisfied the requirements of Article 22 of the
Constitution, then the validity of such law could not be assailed on the
ground that the law violated the provisions of Article 19(1) or Article 14
of Article 21 of the Constitution.
DOCTRINE OF POST-DECISIONAL
HEARING
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POST-EMERGENCY DEVELOPMENTS -
44TH CONSTITUTIONAL AMENDMENT,
1978 AND ITS EFFECT
mentioned, so that they are to be found within it and not outside it. To
take a contrary view would involve a conflict between natural law and
our Constitutional law. I am emphatically of opinion that a divorce
between natural law and our Constitutional law will be disastrous. It will
defeat one of the basic purposes of our Constitution. The implication of
what I have indicated above is that Article 21 is also a recognition and
declaration of rights which inhere in every individual.”
CONSEQUENCES
It will be interesting to consider the Consequences of the
Culmination of the Doctrine of Article 21 being the Sole Repository of
the Right to Life and Personal Liberty and its Replacement by the
Doctrine of Inalienable and Natural Right to Life and Personal
Liberty, as also 44th Constitutional Amendment, 1978 made in Article
359 of the Constitution:
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